THE E-1 and E-2 VISAS

Treaty Trader and Treaty Investor Visa

The E-1 and E-2 visas are the most common portals through which foreign-owned companies transfer their employees to the U.S. from treaty countries. There is no annual limit to the E visas, which makes it more desirable than the H-1B as employers are able to petition for their employees throughout the year. Unlike the L visa, it is not necessary to have a business outside the U.S., and it is not necessary to for the employee to have worked for the foreign entity for any length of time. Another advantage is that, unlike other visas, the E visa can be renewed without limits on periods of stay in the U.S.

E-1 Visa Requirements

E-1 visas are used for traders. The requirements for the E-1 visa for treaty traders are as follows:

There must be active and substantial trade between the U.S. and the foreign country in order to qualify. What is “substantial” will vary from case to case depending on the size of the business and trade. Businesses with revenues in the millions of dollars will certainly qualify, but even smaller enterprises may qualify. Trade can be in form of goods or services. In addition, more than 50% of the trade the company conducts must be between the U.S. and the foreign country. For example, if an Argentine company has $1 million per year in imports from Argentina to the U.S., but also imports $2 million per year from China, it will not qualify.

The visa applicant must be coming to the U.S. to carry on substantial trade in order to develop and direct the enterprise. In certain situations, the visa applicant can be an employee transferring to the U.S. as a manager, executive, or specialized knowledge employee.

An ‘executive’ directs the management of the company or a major part or function of the organization, and has a supervisory role in the organization (such as President, Vice President, Director, etc.).

A ‘manager’ directs the organization, a department, or a function of the organization.

A ‘specialized knowledge employee’ has a special knowledge of the company’s products or services and their applications in world markets, or an advanced or proprietary knowledge of the company’s processes or procedures. The specialized knowledge cannot be generally available in the industry and must be unique and proprietary to the company and its products, services, processes or procedures. It would have to take the company considerable time, effort and resources to train another person with a similar skill-set to gain this knowledge.

E-2 Visa Requirements

E-2 visas are used for investors. The requirements for the E-2 visa for treaty investors are as follows:

The visa applicant must be a citizen of one of the above countries who have a treaty of commerce and navigation with the U.S.

The investor must have already invested, or is actively in the process of investing, a ‘substantial amount of capital’. What is ‘substantial’ will vary from case to case depending on the size of the business. Businesses transacting millions of dollars will certainly qualify, but even smaller companies may qualify.

The business may not be a marginal business. It must be an active business with substantial revenues and profits and cannot be used solely as a way for the investor to earn minimal income.

The visa applicant must be coming to the United States to develop and direct the enterprise. In certain situations, the visa applicant can also be an employee transferring to the U.S. as a manager, executive or specialized knowledge employee.

E Visa Procedures and Processing Times

The E visas are usually filed with the U.S. embassy or consulate in the applicant’s country of citizenship or residence. The procedure for filing your E visa will vary greatly from country to country because different consulates has different procedures and processing times. Most documents will be similar across the board, but there are many regional changes and requirements respective to the consulate. For example, in some countries the E-2 visa application can be adjudicated in 2 weeks, while in the U.K., processing times often take over 4 months.

Applicants who are already in the U.S. on another visa may ask for a change of status in the country. In most cases, this is not recommended because the applicant will have to apply again in his or her home country for a visa upon leaving the U.S.

Dependents such as spouses and children may apply simultaneously or following the primary applicant’s approval. Spouses and minor children (under 21) of E visa holders receive E-1 or E-2 visas. Spouses with E visas may apply for work authorization upon arrival in the U.S. and then work independently without a visa sponsor. Children can study in the U.S. without separate sponsorship but they are not permitted to work.

Once the company is approved for E visa status, the various consulates will keep that registration for a period of time. Some for 3 years, some for 5, etc. This is akin to a blanket approval of the company, which allows the company to file for additional employees more easily as its eligibility in the category has already been established.

E Visa Validity

E visas are usually granted for 5 years at a time. However, if the U.S. company has been doing business for less than one year, additional information and evidence must be submitted at a later date. If approved, E visas for start-ups will be granted for two years. If, after two years and the company is thriving, the visa can be renewed for five years.

E visas may not be renewed indefinitely as it is not intended to be a permanent visa status. The applicant must intend to leave the U.S. when his or her stay is over.

New companies coming to the U.S. often underestimate the time it will take to set up operations and start accruing revenue. Therefore, it is important to hire an immigration attorney with strong business knowledge. Give us a call to start on your case today. We’ll determine the best strategy and guide you through common issues that can lead to delays and denials.

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